Saudi Arabia and International Law on Aquatic Ecosystem

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Table of Contents

Introduction
Background
Literature Review
Recommendations and conclusion
References

Introduction

There are many convectional, traditional, and customary rules formulated to regulate the utilization of water-related resources of different nations. However, majority are dictated by people’s perceptions towards the issue of sovereignty of states. Applicability of such laws in Saudi Arabia, therefore, means that acts amounting to aquatic pollution would entail illegal acts if they entangle the erosion of territorial integrity of Saudi Arabia. This perception widely holds in the “case of shared freshwater resources where the focus of the equitable use principle is on the balancing of different use interests in the resource and not on the protection of ecological interests” (Brunnée & Toope, 1994, p.45). Nevertheless, in the recent past, numerous developing regimes of aquatic ecosystem international law stand out as departing and extending far beyond the obligations adhered to by traditional approaches.

The modern focus of conservation and protection of aquatic ecosystems in Saudi Arabia predominantly rests on the need for creation of laws that foster the use of international watercourses in a manner that is not only equitable but also reasonable. According to Brunnée and Toope (1994), such an approach entails the “prevention of significant transboundary harm by including more ‘purely’ environmental obligations, such as provisions that require the adoption of a more ecosystem-oriented approach to such protection” (p.49). The ecosystem approach is the heart of the aquatic ecosystem international law formulations binding Saudi Arabia. Its roots are anchored in the United States scientific literature of 1930’s and 40’s and implies looking at the aquatic ecosystem as a single unit, as opposed to a set of interconnected components. As Ehrlich et al (1987) informs, “An ecosystem is the functional unit that includes both biotic (living) and abiotic (non-living) elements” (p.97). EGEL (The Experts Group on Environmental Law), on the other hand, claims that aquatic ecosystem embraces “a system of plants, animals and micro-organisms together with the non-living components of the environment” (Brunnée & Toope, 1994, p.51). For the purposes of discussions in this paper, aquatic ecosystem will be used to mean both fresh and salty water’s living organisms (biotic) and non living organisms (abiotic) that supports the life of the biotic component.

Akin to the setting of the international laws on aquatic life protection and conservation to which Saudi Arabia subscribes is the need to regulate non-navigational human activities. To achieve this goal, it is necessary to identify aquatic ecosystems, which are most vulnerable to deterioration and destruction by human activities. This helps people to apply the international law provisions explicitly on specific cases in an endeavor to make it more effective in monitoring of undue human activities. Nevertheless, this presents a challenge particularly by considering Schwarte and Siegele (2008) insight that “at present, there is no global legal framework, which defines international responsibilities and mechanisms in the identification, creation and protection of Marine Protected Areas beyond national jurisdiction” (p.5). This paper opens a broad space for the interpretation of Saudi Arabian’s obligations and rights as stipulated in the international law that set guidelines and regulations for human interactions with the aquatic ecosystem. In the development of the debate, the paper recognizes that negative interference of the aquatic ecosystem in Saudi Arabia has negative impacts on the dry land. Hence, the conservation and protection of the aquatic biodiversity, as expressed by the international legal policy instruments, is not only necessary for consideration in the international arena, but also amounts to treaties to which Saudi Arabia and the international community need to adhere. In an attempt to shed light on this concern, the paper provides a substantial and comprehensive treatment of regional treaties amounting to international laws on aquatic ecosystems binding Saudi Arabia.

Background

Why enact Saudi Arabia’s aquatic ecosystem conservation and protection strategies in accordance to international law?

Based on estimations, oceans cover about 70 % of the total surface of the earth. Schwarte and Siegele (2008) approximate that this surface has “an average depth of almost 4,000 meters” and further asserts, “It is estimated that more than 90 % of the planet’s living biomass is found there” (p.4). In this line of view, it is also plausible to note that the aquatic ecosystem manages large amounts of pollutants generated both within it and in the dry land. Additionally, apart from supporting apparently almost all life on earth, it buffers and regulates both global temperature and weather. It is also claimed by scientists that aquatic environments such as deep sea beds remains unexploited and holds high potentials for generation of knowledge that may go far in the discovery of medicinal interventions of incurable diseases that have threatened existence of people. Failure to conserve and protect Saudi Arabian’s aquatic ecosystem would thus deprive the state all this benefits.

From a different dimension, Saudi Arabian’s marine life remains highly threatened by wastes disposed by people especially plastic debris. This threat applies also to other nations globally. Schwarte and Siegele (2008) support its existence when they contend that “Plastic and synthetic materials are the most common types of marine debris and many animals have been injured or have died after being entangled in or ingesting these materials” (p.4).These wastes threaten health, productivity biodiversity and self purification of the aquatic environment of Saudi Arabian waters. Other activities such uncontrolled fishing and shipping, also leads to compounded damage to the aquatic life. This amplifies the fear that if Saudi Arabia does not take plausible interventions through embracing appropriate international laws to regulate these human activities, some aquatic species may get lost long before they have been discovered. International laws on aquatic ecosystem recognize the need to regulate shipping activities. Likely dangers posed by shipping to aquatic life ranges from deliberate or accidental oil spillages, noise, discharge of operational wastes of the sea vessels, ballast water, release of unti-fouling paints to chemical residues among other threats. Other activities such as military operations, seismic studies, and exploitation of gases and oils are inherent causes of hearing loss, disruption of mating activities, communication, migration patterns and feeding of whales and dolphins among other ocean biotic species. Laying deep-water cables causes disruptions of the aquatic ecosystem in general. Saudi Arabia has thus found it significant to adopt international laws on aquatic life conservation and protection. Such laws capture various mechanisms and methodologies of regulating aquatic human activities so that they amount to milder effects on aquatic ecosystem.

Literature Review

Public international law on aquatic life protection and conservation binding Saudi Arabia

Saudi Arabia subscribes to public international laws. These laws prescribe principles and rules that regulate the various relationships existing between states and other organs that are subject to application of international law. Such organs include European communities without negating the United Nations. Ehrlich et al (1987) informs that international public law is “primarily created through states and covers almost all areas of inter-state activities such as trade, diplomacy, postal services, transboundary emissions, and the use of outer space and war” (p.103). Brunnée and Toope (1994) posit, “Public international law governs issues relating to the global environment, control and jurisdiction over territory, human rights and international crime” (p.42). Aquatic environment is perhaps one of the inter-States interconnected environments whose use is subject to international law application. It is critical to note that despite the fact that the international public laws serve the interests of individuals and various interests groups, it primarily confers varying obligations coupled with rights to States only in situations where it is called for. This implies that it is only on limited occasions that Saudi Arabia citizens can base their claims for their rights directly from the international law stipulations.

International law rests on customary law and international treaties. “Treaties are agreements between states and only bind the participating parties” (Schwarte & Siegele, 2008, p.8). Discussing international law as it applies to Saudi Arabia’s aquatic ecosystem is consequently merely an introspection of the related customary law and the proceeds of various international treaties. Essential also to note is that, in the discussion of the international treaties, the terms protocols, covenants, pacts and convections are synonymous. The United Nations charter is perhaps one of the most vastly known international convection, which is more often than not termed as “the constitution of the international community”. Other than this protocol, Schwarte and Siegele (2008) shed light that “there is no hierarchy between different international treaties and therefore conflicts amongst different treaty regimes may be addressed in the treaties themselves but can be subject to often contentious questions of application and interpretation” (p.10). Stemming from this treaties are the regulatory regimes, which directly monitor the compliance of the actions of the signatory member States to the stipulated regulations by the international codes of conducts in relation to their aquatic ecosystem activities.

Saudi Arabia subscribes to Convection’s law and customary law that applies to conservation and protection of aquatic ecosystem deployed in the establishment of the international laws. These two laws are in fact complementary in many aspects. Convections depend on codifications laid out in the customary law. The practices of the nations, including Saudi Arabia, subsequently produce the provisions of the protocols further. In this context, the actions of various states lead to emergence of more rules within the sphere of the customary law. However, as Brunnée and Toope (1994) reckon, “What constitutes currently applicable international law is however often a question of interpretation dependent on political factors operating within the sphere of international relations” (p.47). In addition to provisions of treaties, academic investigations, States’ behaviors, precedence’s of international courts and direct evidences forms persuasive sources and frameworks for international customs adopted by Saudi Arabia.

Application of International law in Saudi Arabia’s aquatic ecosystems conservation and protection

Saudi Arabia recognizes the concerns of the international law on aquatic conservation and protection in her formulation of aquatic ecosystem conservation and protection laws. The international law on aquatic ecosystems channels its efforts to curtailing the human activities that pose threats to the marine organisms both living and non-living. Important treaties and international laws that govern conservation of aquatic environments includes marine mammal protection act (1972) enacted in the US, treaty on fishing and conservation of living resources in the high seas (1966) and the 1997 convection among others. Now, the rest of the paper highlights these treaties and their jurisdictions showing how they relate to the conservation and preservation of aquatic life. In this endeavor, the concept of what is termed as high seas in the international law is essential to scrutinize before proceeding to the global international protocols applicable in Saudi Arabia.

High seas

The study of the implication of the concept of high seas began as early as the seventieth century. Brunné and Toope posit that “by the first half of the 19th century the notion of the high seas as an area exempt from claims to national sovereignty by any State had, with some exceptions, become generally accepted” (1994, p.43). States had no legal obligation under international provisions to intercept other States’ high sea operations in as much as they entailed lawful activities. However, in the modern aquatic international law provisions, lawful activities on the high seas are widely dictated by convections of the United Nations pertaining to high seas (UNCLOS). This convention, under international law on aquatic ecosystems conservation and preservation, is the constitution that provides guidelines for use of world’s oceans. The guidelines embraces navigational rights, scientific research of marine environments, technology transfers, commercial activities such as fishing, gases and oils mining, environmental controls and settlement of disputes likely to arise because of regulation of these activities. In the words of Schwart and Siegele (2008, p.11), the “Convention also sets out the international consensus on the scope and regime for different jurisdictional maritime zones” (p.9). Marine time zones jurisdictions stipulates that coastal states have only legal capacity to practice their sovereign rights to only belts extending 12 nautical miles from their territories. Vessels belonging to foreign states, as a repercussion, have only the rights to get into those belts on innocence “grounds”. On the aspects of utilization of natural resources, scientific research, some economic activities coupled with environmental protection, UNCLOS provides that coastal states have sovereign rights to the extents of 200 nautical miles. Beyond this extent, other states have the right to lay their submarine cables, have freedom of navigation and even over flight. Within the exclusive economic zones, states have the rights to carry out and enforce immigration customs, sanitary and fiscal regulations and laws consistent with that States’ legal provisions.

Saudi Arabia amongst other nations has her own laws that regulate activities of her vessel sailing in aquatic environments. However, the international law sets the jurisdiction applicable to vessels sailing in the high seas. According to the United Nations convections, as confirmed by (Schwart & Siegele, 2008, p.10), “Ships that sail in the high seas remain under the jurisdiction of the State that they fly its flag”. In the interest of regulation of overfishing, the international law on aquatic preservation and conservation as provided for by UNCLOS demand that high water fishing vessels should acquire authorization permit before engaging in the fishing activities in such waters. It is however apparent that under the United Nations convections, “The principle of Flag State jurisdiction is subject to some exceptions” (Schwart & Siegele, 2008, p.11).for instance, in case of piracy, a nation’s ship and or a plane may take an appropriate action against pirate’s vessels and their crews. On a different dimension, the international law as it pertains to restriction of high seas activities, accords Saudi Arabia the right to stop, arrest, and search and or board high sea vessels subject to international agreements or on the grounds of ad hoc. This application of the international law may perhaps be well exemplified by, illegal fishing interceptions such as the arrest of Spanish fishing vessels by Norwegian boats in 2006.

Global international convections

Under international agreements, there are no specific areas and designations tagged as protected aquatic habitats. Additionally, international law does not establish internationally agreed legal frameworks that address eminent threat acerbated by human activities on aquatic environment to designated regions. The global treaties in existence more often indirectly or directly concern themselves with conservation and protection of aquatic environment in general. The following discussion introspect such treaties applicable in Saudi Arabia.

United Nations’ conventions amounting to international laws on sea binding Saudi Arabia

Under provisions of UNCLOS, the marine environment is subdivided in different zones. The provisions spells outs the various responsibilities and rights of differing states in connection to the laid out zones. UNCLOS also postulates that states have general calls to ensure cute protection of marine environment lying both beyond and within national jurisdictions. The convection goes on to provide that states have noble roles to either jointly or individually take strategic measures vital for reduction, prevention and where necessary total control of pollution of the aquatic ecosystem by any source, water vessels, exploitations of sea resources, dumping of both land based and sea based wastes among others. UNCLOS also requires states to take a collaborative approach in management, protection and conservation of aquatic biotic component. This particularly applies where various nations fish in common grounds. In this context, Schwart and Siegele inform that the united nations treaty provides that “ Conservation measures must be designed on the basis of the best scientific evidence available to maintain populations at levels which can produce the maximum sustainable yield and avoid threats to the species associated with or dependent upon harvested species” (2008, p.13). UNCLOS declares sea beds coupled with their sub-soils that are beyond the stipulated states jurisdictions as heritages common for the entire human race. The global human race, through its States, deserves to conserve and protect such heritages collaboratively. “All resource exploration and exploitation activities in this ‘area’ are to be carried out for the benefit of mankind as a whole taking into particular consideration the interests of developing states” (Ehrlich et al, 1987, p.123). Under the international laws, international seabed authority (ISA), whose mandate Saudi Arabia appreciates, was to serve this purpose.

Agreement on fish stocks

Within the spectra of the international laws that regulate the aquatic ecosystems and binding Saudi Arabia, is the 1982 United Nations fish stocks agreement. This law articulates “straddling fish stocks” coupled with “highly migratory fish stocks” management with conservation measures as stipulated in UNCLOS implementation agreement arrived at during the 10^th December 1982 convention. In the international law provisions, this law is interpreted consistently with UNCLOS provisions on the manner in which the international community’s needs to interact with aquatic ecosystems. As Koslow (2009) posits, “In areas beyond national jurisdiction fisheries management is to be based on the precautionary approach, i.e. the absence of adequate scientific information must not be used as a reason for postponing or failing to take conservation measures” (p.67). The conservation measures addressed in this law are evident in Saudi Arabia’s aquatic ecosystem conservation and protection strategies. Such measures relates to but not limited to deployment of selective fishing technologies and tool coupled with deployment of management methodologies that are akin to protection of fish species that live within the same ecosystem. Additionally, this law makes provisions and sets conditions that, parties that do not necessarily subscribe or belong to the fisheries agreement must fulfill. It calls such parties to take proactive roles in both conservation and cooperation in protection of vulnerable fish stocks. In this extent, Koslow (2009) reckons that “a State whose vessels fish on the high seas, must also take the necessary measures to ensure that these vessels respect regional conservation regimes” (p.91). The law only permits States to give permits to fishing vessels to which they can only exercise their control. This is necessary since it amounts to a means by which Saudi Arabia can be able to monitor irresponsible conducts extended by the fishing vessels and their crew, which may pose danger to aquatic ecosystem.

International protocols on biodiversity applicable in Saudi Arabia’s laws on conservation and protection of aquatic ecosystems

CBD (convention on biodiversity) is one of the International protocols on biodiversity applicable in Saudi Arabia’s conservation and protection of aquatic ecosystems laws. It serves in facilitating the conservation of the aquatic biodiversity by ensuring the employment of the constituent components of the diversity in a manner that is both sustainable and facilitative of equitable sharing of all the benefits accruing from its utilization. In Saudi Arabia, CBD concerns cuts across all the genetic resources while not negating every aquatic ecosystem species. As Ray and McCormick (2004) posit, the law provides “ that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat” (p.145). Despite the fact that CBD’s are not applicable to areas that are beyond the stipulated zones in the national jurisdictions under the international law per se, the laws hold for States individually in matters of regulation of the human activities, which are a great foe to aquatic biodiversity in the areas such States, are situated. In regions not within the jurisdiction of States, CBD laws hold when applied to activities executed under all the parties’ control. In such contexts, the laws also call for collaborative conservation and protection of aquatic biodiversity by all States to ensure sustainability in the utilization of the biodiversity. Ray and McCormick (2004) add that, “with respect to the marine environment, the CBD is to be implemented consistently with the rights and obligations of States under the law of the sea” (p.151). It is with these concerns that COP (conference of the parties), is vital in the endeavor to implement the concerns of the CBD. The seventh COP laid out the targets critical for development of worldwide network embracing coastal coupled with marine necessary areas of protection before the end of 2012. Under international laws, these critical elements would facilitate enactment of an open-ended ad hoc group.

UNESCO convections

The UNESCO convention of 1972 calls for all states to point out all the sites that are essential for preservation, protection and more importantly for transmission to natural and cultural heritage generations of future across the globe. The WH committee designated global heritage regions, which it deemed of essential value to humanity in terms of their universality. According to McIntyre (2004), such areas included “maritime habitats such as the Great Barrier Reef (Australia) or the Tubbataha Reef Marine Park (Philippines)” (p.6). Though this law binds more than one state, other than just only Saudi Arabia, it only holds for the sites that rest within national demarcations of parties bound by the convection.

The 2001 UNESCO protocols, opposed to WH pacts cover the underwater cultural heritages that lie both outside and within national jurisdictions of States. With regard to Ray and McCormick (2004) “underwater cultural heritage embraces all traces of human existence having a cultural, historical or archaeological character which has been partially or totally under water for at least 100 years” (p.101). In such a provision, ship wreckages situated within Saudi Arabia’s territories becomes part of aquatic abiotic ecosystem vital for conservation and protection since they may attract incredible settlement sites for aquatic biotic component species. UCH pacts provide that “when such objects are found on the sea beds or ocean floors that are beyond areas of national jurisdiction, notifications must go to the Director-General of UNESCO and the Secretary-General of the International Seabed Authority” (McCaffrey, 2001, p.129). Preservation of all cultural aquatic heritages is vital to UCH provisions since they benefit the entire global humanity, not just Saudi Arabia.

The 1997 United Nation’s protocols: their applicability in conservation of Saudi Arabia’s conservation and protection of aquatic ecosystems laws

Saudi Arabia subscribes to the provisions of 1997 protocols of the UN. The 1997 protocols establish legal provisions for non-navigational employment of watercourses belonging to the international community. The pact contains 37 articles, which appear in seven distinct parts, and includes an arbitration annex. As McCaffrey, informs, “Its provenance can be traced to a resolution adopted in 1970 by the UN General Assembly calling upon the ILC to study the law of international watercourses with a view to its progressive development and codification” (2001, p.67). This section dedicates itself to introspection of specific articles that are of global relevance in relation to applicability of 1997 UN convection in the international law of protection and conservation of aquatic ecosystem.

The pacts of the 1997 that address the need for preservation and protection of aquatic ecosystem are available in the articles 20 and 22. As McIntyre (2004) informs, “Article 23 requires that watercourse States take measures to protect and preserve the ‘marine environment’, thereby linking the use and protection of watercourses with protection of the marine environment in a manner consistent with a broad ecosystem approach” (p.6). In particular, article 20 stipulates that all the watercourse States must where necessary either jointly or individually conserve protect and preserve all the international watercourses. As explicitly expressed by the Forty-Ninth Session Report of the International Law Commission, the “international watercourses protection obligation is a specific application of the requirement contained in article 5: watercourse States are to use and develop an international watercourse in a manner that is consistent with adequate protection thereof” (McIntyre, 2004, p.6). Saudi Arabia’s aquatic ecosystem that is necessary for conservation and protection here embraces both non-living and living units that more often operates communally. Under the international law on aquatic ecosystems conservation and protection, article (20) comprises a magnificent basis of sustainable developments. ILC contends, “There is ample precedent for the obligation contained in Article 20 in the practice of States and the work of international organizations” (McIntyre, 2004, p.6). The 1997 convention outlined that preservation obligation in legal terms means specifically that ‘”freshwater ecosystems that are in a ‘pristine or unspoilt condition’, must be maintained as much as possible in their natural state” (McIntyre, 2004, p.7). Article 21 of the convention lays the fundamental of interrelationships between watercourses and flora and fauna of aquatic ecosystems. It is however critical to posit that aquatic ecosystem in Saudi Arabia is more often afflicted by human activities executed near or even far away from the watercourses. Obligations of the States set out in the convection are largely detached from subjects of equitable balancing. However, as Birnie and Boyle puts it, article 21 provides “overriding objective of sustainable development, requiring a balancing of economic and environmental objectives in developing States” (2002, p.315). Saudi Arabia is one of the developing countries referred here.

Article 22 of the 1997 convection is concerned with the curtailing of endeavors to introduce new or rather detrimental and unfriendly alien species to the aquatic ecosystem. The article also introduces the concepts of pollution that are negated in the prior convections. The United Nations convections utilized before omitted inclusions of biological alterations in the legal decision of what amounts to pollutants. Precisely, the article stipulates that “Watercourse States shall take all measures necessary to prevent the introduction of species, alien or new, into an international watercourse which may have effects that are detrimental to the ecosystem of the watercourse resulting to significant harm to other watercourse States” (McIntyre, 2004, p.10). Article 22 holds valid for the regulations that seek to reduce both accidental and deliberate introduction of detrimental alien components into aquatic ecosystem under international law provisions on aquatic ecosystem protection and conservation.

Central to the 1997 United Nations’ protocols and congruent with Saudi Arabia’s endeavors to protect and conserve her aquatic ecosystems are the international rules and regulations. They guide the protection and conservation of fresh water aquatic ecosystem. As claimed by McCaffrey (2001), “the hydrologic scope of the Convention is determined by its definition of the term “international watercourse” (p.53). In nonprofessional interpretation, this implies that the term means international waters. However, according to the provisions of the convection, the meaning is much wider. The 1997 convection makes it clear that fresh watercourses incorporate the aquifer waters (underground water) that in most of the situations than not interact with global waters found on the surface of the earth. The implication of it is that, if Saudi Arabia pollutes her surface water, it would amount to pollution of the aquifer waters and vice versa. Under the articles2, a watercourse is “a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole…” (McCaffrey, 2001, p.31). The implication of this definition in relation to Saudi Arabia’s aquatic ecosystem conservation and protection measures is that people need to pay attention to the existing relationships between all components of the vast system of aquifer waters and surface waters that comprise the international waters. Failure to do this, harm on watercourse executed at one section of aquatic ecosystem would be evident to all sections of the vast system. Arguably, going by this definition, no single Saudi Arabia’s designated area can be termed as more vulnerable to destruction compared to others. Destruction channeled to such an area, if at all it existed, is transmitted even to all other areas that would have otherwise being termed a less vulnerable. Inclusion of aquifer water in the discussions of 1997 convection faced criticisms from some nations. In this end, Birnie and Boyle reckon that “ Despite the hydrologic futility of excluding this essential part of a watercourse system from legal regulation, the inclusion of groundwater was cited by two states as a reason for their abstentions from the vote on the Convention” (p.310). In the call to preserve and conserve all the international watercourses, another essential water source of ground water especially in arid area: confined aquifer water, was nowhere in the protocols. This is perhaps significant since Saudi Arabia is in an arid region.

Confined aquifer water, or fossil water does not interact with the waters found on the surface of the earth. Even though, ILC never found it plausible to include fossil water in its articles, it recommended, “States apply the principles contained in its draft articles to this form of groundwater” (Birnie & Boyle p.310). Several queries rise following this exclusion. One of the most vocal queries is whether fossil transboundary waters are subject to international law on aquatic ecosystem conservation and protection fundamental principles of pollution protection and equitable utilization.

Part II of the 1997 convection houses the general principles and introduces what may be termed under international laws on protection and conservation of aquatic ecosystem as the ‘most vital provisions’. This is evident in article 5. The article carries the principles of reasonable and equitable utilization coupled with collective participation. In legal terms, the article lays the foundation of international laws on watercourses. In the article, this is the principle of utilization of international watercourses in reasonable and equitable manner Vis-a viz other nations sharing it. The guidelines provided in the article stipulate that all nations of the world have legal capacity to enjoy all benefit accruing from utilization of international watercourses. The premises of this fact were laid out in the ‘Gab.íkovo-Nagymaros’ case settled by the international court of justice. According to Birnie and Boyle, the court “confirmed the centrality of this principle when it emphasized the importance of operating the project involved in the case ‘in an equitable and reasonable manner’” (2002, p.291). With respect to the provisions of article 5, reasonable and equitable utilization of aquatic ecosystem resources needs be consistent and compliant with provisions of sufficient protection of all watercourses against harms of all forms of degradation including pollution. However, how could two nations determine whether their use of watercourses is both equitable and reasonable comparatively under the provisions of 1997 convection?

Article 6 gives an amicable answer to the above query. It outlines the non-exhaustive factors for deployment in the determination of reasonability and equitability of use of international watercourses between two nations. However, considering provisions of article 9, the decision is predominantly dependent on close cooperation between two nations in question. Article 9 demands that “riparian states exchange data and information concerning the condition of the watercourse on a regular basis” (McCaffrey, 2001, p.61). In this context, one state cannot thus determine its equitability and reasonability of its use of international watercourses in absence of data from its riparian nation with which it shares the resource. Inherent to article 6, there is thus the need for riparian states to consider implementation of equitable and reasonable utilization principles through some joint commission, a common court or even any other free and fair third party. In fact, “ there is no other general principle that can take into account adequately the wide spectrum of factors that may come into play with regard to international watercourses throughout the world” (Ray & McCormick, 2004, p.89). The call is for the nations to establish regimes of monitoring and regulation of equitability and reasonability in use of common resources. Article 8 sets forth an obligation that applies generally to all nations that share international watercourses. The obligations are critical “in order to attain optimal utilization and adequate protection of an international watercourse” (Ray & McCormick, 2004, p.89).

Considering the contexts of Saudi Arabia’s protection and conservation of aquatic ecosystems, the most conspicuous controversies in the application and embracement of the 1997 United Nations protocols are available in article 7. From the outright blush through the article, it is comprehensible for States to subscribe to the provision that, they should not cause harm to each other’s common and shared watercourses. When the application of the articles kicks off in the international waters, for instance high seas, the simplistic understanding of the article attracts other considerations. This is critical especially where a nation may differ in decision of change of use of waters by her repatriate nation. As way of example, it is likely that when an upstream nation begins to use international water for both generation of power and agriculture, the downstream nation would dispute this change of use. It would probably claim that the upstream nation has unreasonably utilized the resource in a manner that has interfered with its long established use of the resource downstream (Risper, 2000, p.47). The question raised in such a situation is how to apply article 7 to resolve this problem based on what each nation considers as reasonable. How would they achieve reconciliation of the dispute be achieved?

The above two questions are the subjects of the arguments against the applicability of article 7 of the 1997 United Nations convection particularly when interrelated with the previsions of article 5. The emerging controversy fueled by attempts to interpret the legal implications of the two articles spreads the controversies even to the interpretation of the concept of “no significant harm” in the endeavors to conserve and protect aquatic ecosystem. The concept of “no significant harm” is rooted to 1991 ILC first draft in which it was stipulated that “watercourse States shall utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse States” (Brunnée & Toope, 1994, p.44). However, in the adoption of the first draft later in 1994, more flexibility in the application of the concept was incorporated to include aspects of “due diligence” when it comes to use of international waters. More precisely it was stated that “Watercourse States shall exercise due diligence to utilize an international watercourse in such a way as not to cause significant harm” (McIntyre, 2004, p.9). This ideally meant that the expressed legal obligation was not absolute. Additionally, flexibility was enhanced through alteration of the phrase: “no significant harm” to a more lengthy statement: “ a process aimed at avoiding significant harm as far as possible while reaching an equitable result in each concrete case” (McIntyre, 2004, p.9). After 1994 changes, further textual changes happened in 1997 convection.

Unfortunately, many international scholars deem the changes incorporated in article 7 as widely lacking any substance. For example it is argued by people that, the mere deletion of the phrase “due diligence” and replacement of it with the phrase “take all appropriate measures” (McCaffrey, 2001, p.129) is nothing but a mere paraphrase of the deleted phrase. However, the second phrase highly raised questions among many scholars as to whether it consistently contributes to equitable use of resources between States on the basis of obligations of “no harm” or otherwise. This perhaps is not just a dilemma of legal scholars but was also a matter of concern of the 1997 United Nations convection delegates. Some delegates inclined to the school of no harm while others were inclined to the school of equitable utilization. They later argued that “the basic rule was equitable utilization; at most, any harm to another riparian State should merely be one factor to be taken into account in determining whether the harming state’s use was equitable” (McCaffrey, 2001, p.129). Fortunately, the formula reached at the convection had substance for all delegates who subscribed to either school. In this context, it is perhaps plausible to argue that the provisions of chapter 7 are spatial in their stipulations.

Nevertheless, paragraph two of article seven gives an indication that the rule of equitable utilization has precedence in comparison to the doctrine of no harm. McIntyre supports this line of view by claiming that “The very existence of a second paragraph implicitly acknowledging that harm may be caused without engaging the harming State’s responsibility (liability) supports this conclusion” (2004, p.11). Interpreted differently, paragraph 2 of article 7 gives a perception that riparian nations may tolerate some significant harm. This makes the article to have some mitigating clauses. Article 10 establishes the need to solve disputes between states on the manner of use of international watercourses in accordance to provisions of articles 5 and 7. This implies that any conflict between two nations needs a solution. This should be in accordance with not only provisions of no harm doctrine referred in article 7, but also a “reference to the “package” of articles setting forth the principles of both equitable utilization and “no-harm” (McIntyre, 2004, p.11) needs to be consulted.

Article 10 seeks to ensure that navigational utilization of waters do not have preference over non-navigational uses. However, article 10 contains much more information about this regulation. According to McCaffrey (2001) “paragraph 2 provides that a conflict between different kinds of uses of an international watercourse is to be “resolved with reference to articles 5 to 7, and with special regard to the requirements of vital human needs” (p.99). The implication of the phrase “vital human needs” however attract mixed reactions and in fact dominated numerous UN negotiations. ILC maintain that “In determining ‘vital human needs,’ special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and water required for production of food in order to prevent starvation” (McCaffrey, 2001, p.111). Many people also argue that the concept may introduce vacuums that would enable some nations to argue that their use of watercourses is valid on grounds of provision of vital human needs. However, their use of watercourses may emerge as largely contentious as it may hardly incorporate the aspect of vital human needs. However, it worth noting that the concept is largely based on ILC commentaries and hence it may not introduce serious problems in the interpretation and application of international laws on protection and conservation of aquatic ecosystem in Saudi Arabia.

The above discussion relates to general principles in the application of 1997 united nations convection in relation to how international community needs to interrelate when it comes to utilization of international watercourses and international waters resources. Now, it is perhaps important to consider specific provisions in relation to protection and conservation of aquatic ecosystem as provided by the 1997 convection adhered to by Saudi Arabia. These provisions are in part III of the protocols. As McIntyre (2004) reckons , “Part III of the Convention contains a set of procedures to be followed in relation to a new activity in one State that may have a significant adverse effect on other States sharing an international watercourse” (p.11). This part makes it clear that Saudi Arabia and the international community does not contend to the idea that a nation has the freedom to utilize watercourses within its territory in any manner it wants. Most paramount, Part III, stipulates that the nations that considers to alter how they use watercourses within their territory into a way that would pose significant negative impacts to their riparian nations must inform the nations, referred to as the affected nation by the proposed changes. This must be before the implementation of change. The prone nation should then be given a period of not less than six month to table its responses. If the response is against the proposed change, then the international law as stipulated in Part III of the 1997 United Nations pacts, requires that the two parties establish discussions. These discussions aim at “arriving at an equitable resolution of the situation” (McCaffrey, 2001, p.281). As a legal provision, the discussion process is required to consume at least twelve months. In case the concerned nations fail to settle the dispute this way, then part III provides the need for procedures of article 33 of 1997 convection to come into force.

The concerns of Part IV that contains articles 20, 21, 22, 23and 24 have been addressed from pages 17 to 20. However, tantamount to provisions of article 192 of the 1997 convection that spells the rules and regulations in matters of high sea, article 20 fails to set obligations that aquatic ecosystems deserves protection in case the negligence to do so renders a nation sharing a water course harmed as result of use of the same watercourse by its riparian nation. Aquatic ecosystem also embraces areas that are near or border watercourses. Article 20 consequently, “requires that such land areas be maintained in such a way that the watercourses they border are not harmed by, for example, excessive agricultural runoff or other forms of non-point 15 source pollution” (McIntyre, 2004, p.8). Nevertheless, most probably this is actually not an absolute obligation.

Saudi Arabia laws on protection and conservation of aquatic ecosystem are perhaps available in the section dealing with reduction, prevention and pollution control of aquatic ecosystem in the international laws. These concerns are evident in article 21 in part IV of the 1997 united nation protocols. A standard similar to article194 that address issues of high seas comes in handy in the formulation of provisions of article 21. The article stipulates “…that riparian state must “prevent, reduce and control” pollution of international watercourses” (Scovazzi, 2004, p.7). Unlike article 20, provisions of article 21 are qualified obligations. This implies the calling upon of the application of the article whenever “pollution “may cause significant harm to other watercourse States or to their environment” (McCaffrey, 2001, p.253). Pollution that has the capacity to acerbate harm to aquatic ecosystem of the nation where the pollutants originates is consequently to be handled pursuant to the provision s of article 20. Articles 22 establish principles behind introduction of alien substances into aquatic ecosystem. Article 23 stipulates the regulation on land situated fresh watercourses. Article 24 deals essentially with management. Part V and VI contain clauses on emergency and harmful conditions and miscellaneous provisions consecutively.

Extent of UN protocols to measure up to international laws binding Saudi Arabia

From the most basic perspective, Saudi Arabia’s protection and conservation of aquatic ecosystem laws follow precisely the UN pacts, which in turn profile the international customary laws that regulate the application of principles of the preservation and conservation of aquatic ecosystem. These principles include the prevention and control of significant harm, equitable utilization and calls for placing notification of intended measures. The principles are largely also advocated for by ILC commentaries. The principles established in the convections received minimal diplomatic criticisms making it clear that they amount to international law. Nevertheless, it is essential to note that the concepts of no harm and equitable utilization are still contentious. This perhaps could well be explained by referring to Gab.íkovo-Nagymaros case. The judgment of the world court merely depended on the principle of no harm, apart from where general concerns of environmental harm were brought into picture, in making its judgment even though Hungary relied more on it. Alternatively, the court made its judgment based on principle of equitable utilization as may be seen in the phrase “Hungary’s basic right to an equitable and reasonable sharing of the resources of an international watercourse” (McCaffrey, 2001, p.270). Since international court’s precedence form an essential source of international law, the practicality of application of principle of no harm remains questionable as to whether it is a part of international law principles on aquatic ecosystem protection and conservation.

The principles stipulated in the UN convection and adopted by Saudi Arabia merge with the customary law principles that regulate the relationships of nations in matters of sharing fresh water resources. International customary laws provide that “states must protect the ecosystems of international watercourses” (McCaffrey, 2001, p.312). This is largely consistent with provisions of articles 20 and 21 of the UN protocols of 1997. Modern international treaties appreciate the need to protect and conserve not only water but also all those dry land areas that either affect or have a link with health conditions of aquatic ecosystems. As Scovazzi, (2004) reckons, the customary laws appreciates “it is important not only to prevent, reduce, and control the pollution of international watercourses, but also to preserve riparian “buffer zones” so that freshwater species and the water itself is not degraded by activities on the land” (p.11). Arguably, this is the main context of the UN protocols stipulations embraced by Saudi Arabia.

Recommendations and conclusion

The modern focus of conservation and protection of aquatic ecosystems rests in the need for creation of laws that fosters making use of international watercourses in a manner that is not only equitable but also reasonable. However, the paper hold that acts entailing aquatic pollution would entail illegal acts if it entangles erosion of territorial integrity of Saudi Arabia’s waters. This means that even if Saudi Arabia is accorded rights to use her watercourses within her territory by the international laws, she needs to use in a manner that does not affect negatively the biotic and abiotic constituents of aquatic ecosystem. The paper argues that the Saudi Arabia laws on protection and conservation of aquatic ecosystems are derived from the UN protocols that more often than not reflect the concerns of international customary law, which in turn serves as a vital source of international law. The research paper has presented the 1997 UN convection in terms of how it relates to conservation of the aquatic ecosystem by regulating human activities within the territories of nations sharing the international watercourses. This discussion has not been done blindly without paying attention to earlier agreements such as 1991 (pacts on water resources: Chile and Argentina) and1995 (pacts on SDC: Shared Watercourse Systems in Southern Africa) convections among others which immensely forms substantial contributions to enactment of Saudi Arabia’s laws on protection and conservation of aquatic ecosystem. In this end, the paper considers 1997 convection stipulated principles as an upgrading of the earlier convections. This means that these agreements formed initial points that facilitated holding the 1997 convection that would later give birth to international pacts on conservation and protection of aquatic ecosystem. The treatment of the principles of conservation of aquatic ecosystem has not been only limited to fresh watercourses but also extended to include oceans and high seas. The paper finds this significant since about 70 % of the total surface of the earth is oceans. Fresh water sources, on the other hand, supplies water to seas and oceans, which again provides home for millions of biotic and abiotic organizations that have both food and cultural heritage significances in Saudi Arabia and other nations. Global agreements for protection of marine environment are critical. This is particularly significant bearing in mind that “the current range of permissible regimes, coupled with issues around compliance, enforcement, and ultimately, State sovereignty issues, render such a system unworkable” (Scovazzi, 2004, p.17). Therefore, it calls for the establishment of a single set of international protocols that addresses utilization of the final destination of all global waters: oceans and seas. The principles stipulated in the UN convections merge with the customary law principles that regulate the relations of nations in matters of sharing fresh water resources. In the end, both marine and fresh water aquatic ecosystems in Saudi Arabia would receive equal treatment. This is, in fact, necessary since conserving and protecting either of these, amounts to conservation and protection of the other.

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